103-NLR-NLR-V-34-ANNAMALY-CHETTY-v.-THORNHILL.pdf

action.
GARVIN S.P.J.—Annamaly Chetty v. Thornhill.
383
may be brought. But if the law says you cannot bring an action thenthere is no cause of action within the meaning of the definition. Theearlier case was not an action. That is why it was dismissed. Anaction brought by a person under a disability and dismissed. on thatground does not operate as res judicata—(1889) 22 Q.B.D. 357; 3 Bombay223; 18 Madras 466; 48 Calcutta 499; 16 N. L. R. 257; 13 N. L. R. 59.
H. V. Perera, in reply. The Indian law of res judicata is entirelydifferent from ours. Indian cases therefore will not apply.
October 10, 1932. Garvin S.P.J.—
On January 27, 1932, the day fixed for the trial of this case ten issueswere framed. The tenth issue was as follows:—“Does the decree of theSupreme Court dated October 28, 1927, entered of record in actionNo. 4,122 of this Court dismissing the plaintiff’s action operate as a barto this action ? ” The parties submitted a written statement of thefacts which they agreed were relevant to this issue and, after hearingargument, the District Judge made order on the issue leaving the remain-ing nine issues still to be decided. The order was adverse to thedefendant and he has appealed.
The facts as agreed by the parties and as stated by them are as follows : —
On June 19, 1924, the plaintiff sued the defendant in action No. 4,122for the recovery of a sum of money alleged to be due to himfor rice and cash supplied between August, 1923, and June14, 1924, as per account particulars filed with his plaint. Thedefendant denied liability and further pleaded that the plaintiffhad no right of action as he had not registered his business nameand that, therefore, the plaintiff’s action should be dismissed.
Several issues of law and fact were framed and after a full trial ofall such issues this Court entered decree in favour of the plaintiffon January 17, 1927. The defendant appealed to the SupremeCourt. Pending the determination of the appeal, the plaintiffinstituted the present action No. 4,687 of this Court on June2, 1927, against the defendant. This action is in respect- of thesame claim as the action No. 4,122; the sum claimed is thesame as in action No. 4,122 with the addition of further interest.
On October 28, 1927, the Supreme Court allowed the defendant’sappeal and entered decree dismissing the plaintiff’s action onthe ground that he had no right of action because of his failureto comply with the requirements of the Business NamesRegistration Ordinance. The Supreme Court expressed noopinion on the other issues.
To this statement it is necessary to add that the present actionNo. 4,687 first came up for trial in the month of August, 1927, whenupon the defendant’s plea that the action was barred, the followingissues were framed and decided : —
Is this action barred by the action No. 4122 of this Court and the-
final decree entered of record therein ?
Is there a decree that can operate as a bar to the action in D. C.fc- 4,122?
384
GARVIN S.P*J.^-Annamaly Chetty v. Thornhill.
The District Judge upheld the defendant’s plea and dismissed the'action. Upon appeal by the plaintiff to the Supreme Court the judgmentof the District Court was affirmed on March 13, 1928. An appeal wasthen taken by the plaintiff 'to His Majesty’s Privy Council which wassuccessful. Their Lordships expressed the opinion that the appealshould be allowed and that the decrees of the District Court and theSupreme Court should be recalled and “ that the action should beremitted to the District Court of Ratnapura to proceed as accords ”.
In the order of His Majesty in Council dated June 29, 1931, whichembodies the reports of the Lords of the Committee it is directed thatthe action be “ remitted to the said District Court to be tried upon themerits ”. The learned District Judge in the order made by him uponissue 10 framed at the second trial refers to these words and evidentlyinterprets them as a direction to him to try and determine the questionof the right of the plaintiff to recover upon his claim to the exclusion ofa plea in bar of the nature of that which is embodied in the issue. Thewords “ trial on the merits ” appear not only in the order of His Majestyin Council to which I have referred, but also in the order of this Courtremitting the case with the order of the Privy Council to the Courtbelow, but the question for us is whether the words referred to wereintended to deprive the defendant of the right to plead in bar of theplaintiff’s action that, since, the order of the District Court affirmedby the Supreme Court subsequently reviewed by the Privy Councilthe matter has become res adjudicata by reason of the judgment of theSupreme Court in case No. 4,122.
The decree now pleaded as a bar to the maintenance of the presentaction though entered after the order reversed on appeal to the PrivyCouncil had, as a matter of fact, been entered before that appeal washeard and the judgment of their Lordships of the Privy Council showsthat at the time they remitted the case to be heard and determined“ as accords ”, they were aware of that circumstance. But there isno indication in the judgment of their Lordships that they consideredor intended to decide that the decree of the Supreme Court in caseNo: 4,122 was not to be pleaded as a bar to the present suit or thatsuch decree did not constitute the matter in issue between the partiesres adjudicata: On the contrary, to quote from the judgment, “the■only question for their Lordships’ decision is whether on June 2, 1927,the appellant was barred from instituting the present suit because hethen held the decree of the District Judge in his favour in action 4,122,though the respondent’s appeal therefrom was then pending ”. TheirLordships proceeded to answer the question and held that the finalityof the decree was qualified by the appeal and the decree was not there-fore final in the sense that it will form res adjudicata between the sameparties. That decree has been superseded by the decree of the SupremeCourt which is now final. In the absence of a clearer indication of suchan intention, I do not think we can construe the order of the PrivyCouncil as a direction that no objection in point of law to the mainte-nance of this action whether on the ground that the matter in issuehas become res adjudicata or is barred on any other ground was to beexcluded from consideration.
GARVIN SJ?.J.—Annamaly Chetty v. Thornhill.
385
The judgment of the Privy Council decided that at the date of itsinstitution the then existing decree of the District Court was not a barto this suit. The position of the defendant is that the matter has sincebecome res adjudicata by reason of the decree of the Supreme Court incase No. 4,122. What the Supreme Court held was that the plaintiffwas carrying on business under a business name, that the claim made .by him arose out of a contract entered into by him in connection withthe business so carried on, that he had failed to register his businessname under the provision of the Business Names Ordinance, No. 6 of1918, and that his claim was not therefore enforceable by action whilehe was in default. It did not pronounce upon-the merits of the claim.The effect of the judgment is that the plaintiff was not entitled to anadjudication on his right to the relief he claimed so long as he remainedin default.
It is contended, nevertheless, that the Supreme Court having by "itsdecree dismissed the plaintiff’s action every right to relief on the causeof action for which the action was brought has become res adjudicataand cannot be made the subject of a second action on the same cause ofaction. Counsel frankly admitted that if the question ■ were to bedetermined by the general rules of the law of res adjudicata his objectionwould not be sustainable. But he contends that here in Ceylon wehave a statutory rule in accordance with which upon the entry of adecree dismissing a plaintiff’s action no matter upon what ground—except for want of jurisdiction—every right claimed or claimable inrespect of the cause of action for which the action was brought becomesa res adjudicata and therefore operates as a bar to a second action basedon the same cause of action. The provision of the law upon whichCounsel rests this contention is section 207 of the Civil Procedure Codeand the argument was reinforced by reference to other sections ofthe Code of which the more important' are sections 33, 34, 402, 403, 406,and 418.
Section 33 is a general direction that every regular action should beso framed as to afford ground for a final decision upon the subjects indispute “ and so as to prevent further litigation concerning them ”.Section 34 requires a plaintiff to include in his action the wliole of theclaim he is entitled to make in respect of the cause of action. It furtherdeclares that where a plaintiff omits to sue in respect of or intentionallyrelinquishes any portion of his claim he shall not afterwards sue inrespect of the portion so omitted or relinquished. Similarly, if entitledio more than one remedy in respect of the same cause of action he mustsue for all of them upon pain of being left without remedy.
The object of these provisions is clearly to prevent a multiplicity ofactions.
In section 406 there is an indication that it is the policy of the Codethat an action once instituted must be prosecuted until it is determinedby a judgment upon the matter in dispute and that a plaintiff whowithdraws from an action or abandons part of his claim will not bepermitted to bring a fresh action for the same matter or in respect ofthe same part, unless he does so with the permission of the Court which
33J. X. 13 1663.1 (4/521
386
GARVIN S.P.J.—Annamaly Chetty v. Thornhill.
may be granted, where it appears (a) that the action must fail by reasonof some formal defect or (b) that there are sufficient grounds for per-mitting the plaintiff to withdraw from the action or to abandon partof his claim.
An indication of the same policy is to be found in sections 402 and403 which provide for the entry of an order of abatement when anaction is not diligently prosecuted and provides further that when anaction abates no fresh action shall be brought on the same cause of action.In such a case the Court is empowered to set aside its order if the plaintiff,within such time as under all the circumstances may be deemed reason-able, satisfies the Court that he was prevented by any sufficient causefrom continuing the action.
Lastly there is section 207 upon which the plea taken in this case isfounded and is as follows : —
All decrees passed by the Court shall, subject to appeal, when anappeal is allowed, be final between the parties ; and no plaintiffshall hereafter be non-suited.
Explanation.—Every right of property, or to money, or to damages, or to-relief of any kind which can be claimed, set up, or put in issue betweenthe parties to an action upon the cause of action for which theaction is brought, whether it be actually so claimed, set up, or putin issue or not in the action, becomes, on the passing of the finaldecree in the action, a res adjudicata, which cannot afterwards bemade the subject of action for the same cause between the sameparties.
Every decision or order of a Court subject to appeal where an appealis allowed is binding and conclusive on the parties upon the pointsdetermined.
It is urged however that the final decree in an action within the meaningof the “ Explanation ” appended to section 207 has been given a specialeffect, viz., that notwithstanding that the judgment upon which thedecree is based amounts to a refusal on the part of the Court to adjudicateon the right of the plaintiff to the relief he claims, the right to the reliefclaimed and every right to any relief which could have been claimedbecame on the passing of that decree a res adjudicata.
As a mere matter of construction it is impossible to exclude the decreeof the Supreme Court in case No. 4,122 from the provisions of sections207. It is a decree ; it is no longer appealable and is therefore finalbetween the parties within the meaning of section 207. It is equallydifficult to say that it is not the “ final decree in the action ” for itfinally determined the action by directing that it be dismissed. If itis the “ final decree in the action ” within the meaning of the explanationit must be given the effect which this provision says is to follow on thepassing of such a decree.
Prior to the enactment of the Civil Procedure Code the dismissal ofthe plaintiff’s claim was frequently the result of a non-suit. But anon-suit was not a definitive judgment on the right of the plaintiff tothe relief he claimed and was not a bar to the institution of a secondaction on the same cause of action. Indeed, when the dismissal of anaction was pleaded as a bar to a second action the Court closely scru-tinized the proceeding of the earlier action to ascertain whether the
GARVIN S.P.J.—Annamaly Chetty v. Thornhill.
387
dismissal was a definitive decision that the plaintiff was not entitled tothe relief claimed or whether the order only amounted to a non-suit.In Banakiyanage Roddi v. Francisku Fernando Obeyesekera1 this Courtheld that where after hearing evidence on both sides the Judge dismissedthe plaintiff’s case giving as his reason that he did not feel justified ingiving the plaintiff judgment on the evidence produced, especially ashe could not say that he believed the plaintiff’s claim to be true, thedismissal only operated as a non-suit. This is probably an extremecase but it serves to show how great a change was brought about whenby section 207 of the Code the legislature enacted “ that no plaintiffshall hereafter be non-suited Except in so far as the Code expresslyempowers it to do so, e.g., section 406, a Court may not give a plaintiff'whose action fails leave to bring a second action on the same cause ofaction, and a decree dismissing an action may no longer be treated as anon-suit; it is, subject to appeal, the final decree in the action and finaland binding on the parties. The decree of the Supreme Court inNo. 4,122 is the final decree in that action. How is it possible then torefuse to give it the effect which the explanation to section 207 gives tosuch a decree ? Where, as in this instance, the dismissal does notproceed upon an adjudication as to the merits of the plaintiff’s claimthe effect given to the decree by section 207 and the explanation isundoubtedly artificial. But it is urged that no matter how artificialan effect may be given to such a decree, it is an effect which the legis-lature has chosen to give it in accordance with the policy manifestedthroughout the Code that every action must be prosecuted until it isdetermined by a decision which is to be final. The remedy of a personwho finds that his action may fail because of some formal defect is, it isurged, to ask that he be permitted to withdraw from the action withleave to bring a fresh action.
In just such a case as this where an objection was taken that theplaintiff had not registered his business name, B.ertram C.J., whenremitting the case for further inquiry added with reference to an argumentthat upon the dismissal of the action the matter would become resjudicata, “ I have no doubt that, in the event of the Court finding oninvestigation that both partners were in default in respect of the action,it would accede on reasonable terms to any application that the plaintiffsmay make for leave to withdraw from the action and to commence afresh one ”—Jamal Mohideen & Co. v. Meera Saibo
In Karuppen CKetty v. Harrison & Crossfield, Ltd:,3 where the pointfor consideration was whether an objection on the ground that theprovisions of the Business Names Ordinance had not been complied withcan be taken at any stage of an action prior to judgment, Bertram C.J.,held that it might, remarking that it was the duty of the Court to watchover the enforcement of the Ordinance and give effect to it ex mero motushould it come to its notice that the provisions of the Ordinance have notbeen complied with. Incidentally, he stated with reference to thedismissal of an action for failure of the plaintiff to comply with theprovision of that Ordinance, “ I do not think that in such a case any specialx 3 S. C. C. 13.- (1020) 22 N. L. R. 268.
3 (1922) 24 N. L. R. 317
388
GARVIN S.P.J.—Annamaly Chetty v. Thornhill.
leave would be required to bring a fresh action where an action has beendismissed This expression of opinion is obiter but it is to be noted thatin dismissing the plaintiff’s appeal the Chief Justice added that it was tobe “ without prejudice to the plaintiff’s right to bring a fresh action.”
It is now well recognized that section 207 and the explanation appendedto it does not contain the whole of our law of res adjudicates–vide SamitchyAppu v. Pieris The bar created by that section is limited to the caseof a second action upon the same cause of action. Had the law in Ceylonbeen in all respects the same as in England the question under consider-ation is easily settled and the objection would be disallowed on theground that the Court did not adjudicate upon the matter of theplaintiff’s claim.
But the bar to a second suit created by section 207 operates evenwhere there has been no adjudication as to the merits in the earlieraction. The dismissal of an action under the provisions of section 418for failure on the part of the plaintiff to give security for the defendant’scosts has been .held to be the final decree in the action within the meaningof the explanation to section 207 and as such to bar a second actionon the same cause of action—vide Palaniappa Chetty v. Gomes et al.2Similarly a decree of dismissal for default of appearance operates as abar to a second action.
If therefore the decree in No. 4,122 is to be held not to bar the presentaction it can only be on the ground that, though it is the final decreein that action, it is not “ the final decree in the action ” within themeaning and contemplation of the explanation to section 207. Itmust be assumed that the final decree in contemplation is the decreeof a Court of competent jurisdiction, for competency of jurisdictionis essential to the doctrine of res adjudicata. The expression “ finaldecree in the action ” cannot thus be held to contemplate or include adecree of dismissal for want of jurisdiction which is merely a declarationby the Court.of its own want of jurisdiction. Inasmuch, therefore, asthe decree contemplated is the decree of a Court of competent jurisdictionit must also be taken that the decree is one made by the Court in exercise;of its jurisdiction to hear and determine the action.
It seems to me that before a decree can by reason of section 207operate as a bar to the institution of a second action upon the samecause of action it must be—
the decree of a Court of competent jurisdiction
made by the Court in exercise of its jurisdiction to hear and
determine the action, ancf must be
the final decree in the action.
Presumably it need not necessarily be a decree which embodies a judicialdecision upon the merits of the plaintiff’s claim and may be a decreemade without trial or adjudication on the merits, where the Court inexercise of its jurisdiction takes cognizance of the action and dismissesit where it is empowered to do so without entering into the merits as,.for example, when the plaintiff fails to comply with an order to depositfJhe defendant’s costs.
1 3 C. A. C. 30.
2 (1908) 11 N. L. R. 322.
GARVIN S.P.J.—Annamaly Chetty v. Thornhill.
389
The ordinary jurisdiction of the District Court of Ratnapura in whichthe action No. 4,122 was instituted extended to the parties as well asto the subject matter of the action. The plaintiff averred that thatCourt had jurisdiction to give him the relief claimed upon the cause ofaction pleaded. If then the matter was within the general jurisdictionof the Court can it be urged that that jurisdiction was ousted by theprovisions of section 9 of the Business Names Ordinance, No. 6 of 1918,which rendered the claim unenforceable by action ? It is in the natureof a condition imposed upon a person carrying on business under abusiness name with which he must comply before he can enforce byaction a claim upon a contract made in connection with his business.The provision is one which Bertram C.J. thought a Court of law shouldenforce ex mero motu wheh it came to its notice that the plaintiff hadfailed to comply with it. Had a Court in ignorance of any suchinfringement proceeded after trial or without objection to determine theclaim on its merits it could not be successfully urged that its decree wasnot the decree of a.Court of competent jurisdiction and did not thereforeoperate as res adjudicata. The requirement of registration of a businessname operates as a condition upon which the exercise of a Court’sjurisdiction may be invoked; possibly as a condition of the exerciseof its jurisdiction. “ But the competency of a Court’s jurisdictionover a suit is not affected …. by the conditions or mode ofits exercise . . . . ” Hukm Chand on Res Judicata, section 181,p. 449.
In this instance the Court found that the plaintiff had failed to registerhis business name, and the judgment of the Supreme Court pleaded inbar of the present action is a finding that the plaintiff is not entitledto ask a Court to entertain the action and exercise jurisdiction in viewof the existence of a condition which prevents the exercise by it of itsordinary jurisdiction. The Court which passed the decree is a Courtof competent jurisdiction but the decree is not a decree made in exerciseof its jurisdiction over the subject matter of the action but amountsto a declaration that a condition of its exercise has not been compliedwith by the plaintiff, as a result of which it is not able to exercise itsjurisdiction over the action and its subject matter. In this respectit differs from a case in which the Court in exercise of its jurisdictionover the action takes cognizance of the matter and then without trialrefuses the plaintiff relief and dismisses his action in pursuance of aspecial power to do so vested in it by the Code. The decree incase No. 4,122 is not in my opinion a decree passed in the exercise of the!Court’s jurisdiction over the subject matter of the action and is not the“ final decree in the action ” within the meaning of the explanationappended to section 207 of the Civil Procedure Code.
The argument that the plaintiff’s remedy was to apply for permissionto withdraw with leave to bring a fresh action in accordance with section406 of the Code has, I think, been sufficiently answered. I would merelyadd that an action brought by a plaintiff in respect of a claim whichis rendered unenforceable by reason of his failure to register his businessname is not merely defective in form : it is an action of which a Courtmay not take cognizance once it becomes aware of the failure to register.
390
DALTON J.—Annamaly Chetty v. Thornhill.
The issue numbered 10 must therefore be answered in the negativeand the case remitted for trial of the remaining issues. This appeal isaccordingly dismissed with costs.
Dalton J.—
The statement of facts agreed upon by the plaintiff and defendant priorto the District Judge making his order, from which this appeal istaken by the defendant, is in the following paragraphs.
On June 19, 1924, the plaintiff used the defendant in action 4,122for the recovery of a sum of money alleged to be due to him for riceand cash supplied between August, 1923, and June 14, 1924, inaccordance with an account of particulars filed with this plaint. Thedefendant denied liability and further pleaded that the plaintiff had noright of action as he had not registered his business name, and thattherefore plaintiff’s action should be dismissed.
Several issues of law and fact were framed, and after a full trial of allsuch issues the District Court entered decree in favour of the plaintiffon January 17, 1927. The defendant appealed to the Supreme Courtand on October 28, 1927, the Supreme Court allowed the appeal, decreebeing entered dismissing the plaintiff’s action on the ground that he hadno right of action because of his failure to comply with the requirementsof the Business Names Registration Ordinance. No opinion wasexpressed on the other issues.
Whilst that appeal was pending, the plaintiff instituted the presentaction No. 4,687 on June 2, 1927, against the defendant. This actionis in respect of the same claim as action No. 4,122, the sum claimed beingthe same with the addition of further interest.
/ The defendant filed his written answer in No. 4,687 pleading inter aliathat as a matter of law action No. 4,122 and the decree entered of recordwas a bar to this second action. On August 31, 1927, the District Judgeupheld defendant’s plea. The plaintiff appealed from that decision,and on March 13, 1928, the Supreme Court dismissed his appeal. Hethereupon appealed to the Privy Council, and his appeal was allowed.The only question for the decision of the Privy Council was whetheron June 2, 1927, plaintiff was debarred from instituting the presentaction (No. 4,687) because of the decree in his favour in action No. 4,122.This question was answered in the negative, on the ground that an appealwas pending at the time, and that no decree from which an appeal liesand has in fact been taken is final as between the parties so as to formres judicata. The Privy Council therefore allowed the appeal of theplaintiff and sent the case back to be heard, as the order states, on themerits.
This order of the Privy Council is dated May 19, 1931, at which datethere was no appeal pending in action No. 4,122. That appeal wasfinally heard and decided on October 21, 1927, as their Lordships’judgment sets out. They were therefore fully cognizant of the factthat there was no appeal pending in action No. 4,122 after that date.They set out, however, that the sole ground for dismissing the appealin action No. 4,122 was the plaintiff’s, failure to comply with therequirements of the Registration of Business Names Ordinance. Although
DALTON J.—Annamaly Chetty v. Thornhill.
391
no question arose before the Privy Council as to whether the decree inaction No. 4,122 was a final decree after October 21, 1927, so as to formres judicata, I think one may reasonably infer from the facts stated bytheir Lordships in their judgment and from their order in 1931 sendingthe case back to be heard on the merits, they never contemplated thepossibility of any plea as is now entered by the defendant being raisedto prevent a trial on the merits, or if raised being sustainable in law.
In a recent case before the Privy Council, The Cheseborough Manu-facturing Co., Consolidated v. Abdul Kudhoos (November 22, 1929, notreported) it is true an undertaking was required by their Lordships,before dismissing the appeal, that respondent 'would undertake not tomeet any proceedings under the proper Ordinance for the rectificationof the Trade Mark Register by any plea of res judicata, but that under-taking was required under very special circumstances. Petitionerthere had sought in the District Court to expunge a trade mark from theRegister proceeding under an Ordinance that had been repealed.The District Court allowed the petition, but on appeal to the SupremeCourt the order of the District Judge was set aside on October 17, 1928.Petitioner thereupon appealed to the Privy Council, and it was notascertained, until then, that the proceedings had been taken under alaw no longer in force. Under the circumstances, without hearingthe appeal on the merits their Lordships dismissed the appeal on receivingthe undertaking from respondent’s counsel, to which I have referred inrespect of the decree of October 17, 1928.
When the case went back to be heard in accordance with the orderof May 19, 1928, the defendant raised the issue that the decree datedOctober 21,1927, in action No. 4,122 dismissing plaintiff’s action
operated as a bar to this action No. 4,687. The learned District Judgedealt with this as a preliminary issue of law, and answered it in thenegative. From that order the defendant has now appealed to thisCourt. The District Judge held that the issue had already beenanswered by the Privy Council in their judgment of May 31, 1931. Thequestion to be answered there*, however, was whether on June 2, 1927,the appellant was barred from instituting the present suit. The ques-tion was answered in the negative, on the ground that, at that date,there was no final decree since the appeal was still pending. Thequestion for decision now is whether, the decree being final, it operatesas a bar to plaintiff’s action.
Counsel for appellant relies upon the provisions of section 207 of theCivil Procedure Code. The terms of the section itself, to my mind,offer no difficulty, but Mr. Perera relies on what he states are the explicitterms of the explanation to the section. The explanation is certamlyvery wide, but on the other hand there is ample authority for the pro-position that the whole of our law of res judicata is not to be found insections 34, 207, and 406 of the Code, Samichi.v. Pieris1. Lascelles C.J.states that the current of legal decision in Ceylon strongly supportsthe view that on this point there is no distinction between the law ofCeylon and that of England. The views given expression to both by
J 16 N. L. R. 267.
392
DALTON J.—Annamaly Chetty v. Thornhill.
Lascelles C.J. and Wood Renton J. in that case on the subject areincompatible with the narrow and restricted view of the terms of section207 and the explanation added to it which we are now asked to accept.
It is, however, in my opinion, possible to deal with this appeal on thefollowing short ground. The payment of the amount claimed by theplaintiff in the action No. 4,122 was not a right which could be claimedbetween the parties to an action, within the meaning of the words to theexplanation of section 207, at the time that action was instituted.Section 9 of the Registration of Business Names Ordinance, 1918, pro-vides that the rights of a person in default of complying with the require-ments of that Ordinance shall not be enforceable at any time whilsthe is in default by action or other legal proceedings. Whilst the plaintiffwas therefore in default, his claim could not be put in issue by himbetween the parties, nor had the Court any power to adjudicate uponit. In Jamal Mohideen & Co. v. Meera Saibo et al.1 Bertram C.J.construes section 9 as enacting that the defaulter shall not be entitledto bring any action to enforce his rights during the time he is in default.The Supreme Court held on October 28, 1927, that plaintiff had no rightof action because of his default, and for that reason alone his action wasdismissed. That order, in my opinion, can be no bar, under theprovisions of section 207, to his action No. 4,687, he being no longer indefault. For this" reason I am of opinion that the appeal should bedismissed with costs.
Appeal dismissed.
1 22 N. L. R. 2G8.